Topics covered during the plenary session included a review of the status of the Freeway Landfill which has been referred by the Minnesota Pollution Control Agency (“MPCA”) to the U.S. Environmental Protection Agency (“EPA”) for further enforcement action. The MPCA and EPA maintain that the Freeway Landfill, which accepted over 5 million cubic yards of waste from the 1969 until the 1980s, poses a threat to the nearby Minnesota River and groundwater resources in the area. In February 2017 the EPA sent 182 parties (Minnesota businesses primarily construction companies, trash haulers, municipalities and school districts) A General Notice Letter and Request for Information. Current cleanup estimates for the Freeway Landfill are $65 Million to complete the temporary transfer of waste, lining of the existing landfill and placing the waste back in the landfill with cover, post closure monitoring and care. Legislation has been introduced in the current session of the Minnesota Legislature for the State to indemnify potentially responsible parties.

Mr. Maternowski also discussed new federal and state developments relating to the rapidly evolving soil vapor and vapor intrusion issue. On the federal level, the EPA has proposed modifying rules related to the Hazard Ranking System (“HRS”) that has been developed to prioritize federal CERCLA or Superfund sites for investigation and remediation. If the change is promulgated, it is likely that many more sites across the country will be included in the CERCLA or Superfund assessment program. Once a site is scored under the HRS, the site is eligible for the expenditure of federal CERCLA or Superfund monies. The EPA will also then investigate whether one or more responsible parties can be identified and determine whether that party (or those parties) who are identified should be held responsible for EPA costs and site investigation and remediation costs. The Trump Administration has frozen the EPA’s rule and is currently evaluating the proposed regulation.

In Minnesota concerns about soil vapor have grown over recent years. In his remarks Mr. Maternowski noted that the EPA and MPCA have investigated soil vapor plumes at numerous sites with past releases of TCE and PCE. The General Mills State Superfund site, thought to be the source of soil vapors affecting the Como neighborhood of Minneapolis, garnered attention particularly after a class action lawsuit was filed by affected homeowners. The MPCA required an amendment to a Consent Decree governing the cleanup and General Mills tested of soil vapors in residences throughout the Como neighborhood. Mitigation systems were installed in 118 homes. General Mills conducted a further investigation off-site and now maintains that an off-site source to the northeast is responsible for the soil vapor that has been addressed these far. The MPCA is conducting an investigation of the businesses to the northeast and designated the area as the Southeast Hennepin Area Vapor and Groundwater Site. The MPCA has asked 20 commercial and industrial operations in a 15 block area to permit sub-slab testing of soil vapors. If levels of TCE or PCE under the building slabs are 33 times the intrusion screening values set by the Minnesota Department of Health (“MDH”). The Southeast Hennepin Area Vapor and Groundwater Site is one of 10 sites that the MPCA added to the State’s Superfund List of Permanent List of Priorities in the past year. Most of the 10 new sites involve soil vapor releases. The MPCA is also evaluating closed sites to determine which of those sites should be reopened and assessed for soil vapor releases.

Mr. Maternowski serves as a Section Council member of the Minnesota State Bar Association’s Environmental, Natural Resources and Energy (“ENRE”) Law Section. Mr. Maternowski also served on the Planning Committee for the 2017 Minnesota Environmental Institute.

Please see the disclaimer at the bottom of this page that relates to limitations on this blog and to legal advice. For advice on environmental matters involving the MPCA or EPA, please contact:

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Agencies use guidance to make policy. Guidance can be developed and implemented quickly. When agencies use guidance instead of the more formal rulemaking process, they risk Court review and a finding that the guidance is an unpromulgated use. One example of Agency guidance is the Minnesota Pollution Control Agency’s Best Management Practices for Vapor Investigation and Building Mitigation Decisions.

Joseph Maternowski, was named Best Lawyer in the fields of Environmental Law and Litigation – Environmental in Minnesota by Best Lawyers® in 2018. Mr. Maternowski, a shareholder at the Hessian & McKasy law firm in Minneapolis, Minnesota, concentrates his practice on handling the environmental aspects of real estate and commercial transactions with an emphasis on managing the issues […]

NOTE: **Being named to the list or receiving the award is not intended and should not be viewed as comparative to other lawyers or to create an expectation about results that might be achieved in a future matter.